ANNEX 15: THE LAW OF THE FIVE EYES
be committed, or evidence as to commission of an offence or the whereabouts of a
person who is believed to have committed an offence.58 A judge may also order a
person, other than a person under investigation for an offence, to produce documents
or prepare a document based on data already in existence and produce it.59
37.
There is some confusion within Canadian law concerning whether emails that have
already been sent should be governed by intercept or search warrants. In R v Telus
(2013) SCC 16, the Supreme Court interpreted “interception” purposively, holding held
that a warrant requiring a service provider to prospectively provide access to text
messages was invalid: the police were seeking an “interception,” as the service
provider stored text messages on their servers as part of the communication and
transmission process. Thus it is likely that the Royal Canadian Mounted Police should
use their intercept powers, not those for search warrants, when seeking prospective
access to email.
38.
In late 2014, the Canadian Parliament passed the PCFOC 2014 that amended certain
aspects of the Criminal Code. It provided for a clearer and more comprehensive
framework for access to metadata by judicial warrant or court order, on a “reasonable
grounds to suspect” standard (one that is lower than the more traditional reasonable
grounds to believe threshold).60
Access for the Security Services
39.
The CSIS are regulated by the CSIS Act 1984, which distinguishes between “security
intelligence” and “foreign intelligence.” The former relates to national security threats;
the latter to the political or economic activities of foreign states. Save in relation to the
s16 exception set out below, CSIS’s role relates to the collection and analysis of
security intelligence, and it is broadly the equivalent of MI5.
40.
The CSIS Act 1984 s12 provides, where relevant:
“The Service shall collect, by investigation or otherwise, to the extent that it is
strictly necessary, and analyse and retain information and intelligence
respecting activities that may on reasonable grounds be suspected of
constituting threats to the security of Canada and, in relation thereto, shall report
to and advise the Government of Canada.”
41.
The s16 exception provides that the service may collect information or intelligence in
relation to any foreign state as long as that information does not relate to a Canadian
citizen, permanent resident or Canadian corporation and is done in Canada.
42.
Warrant applications are made to a special bank of 14 specially selected and security
cleared Federal Court judges, who meet up twice a year to ensure consistency. They
largely hear warrant applications alone but may sit in larger numbers to hear an
application and to hear submissions from CSIS on a topic of wider interest, although in
58
Section 487.1.
Section 487.12. A separate provision concerns provision of financial data of those suspected of Terrorist
Financing or Money Laundering (487.13).
Criminal Code 417.014-018.
59
60
356